The Most Important Section in the Charter

Throne, Altar, Liberty

The Canadian Red Ensign

The Canadian Red Ensign

Friday, May 8, 2020

The Most Important Section in the Charter

As I have said many times in the past, I am not an admirer of the Charter of Rights and Freedoms. This is not because I disagree with the “fundamental freedoms” listed in Section 2 or the basic legal and civil rights listed in Sections 7 to 13. All of these rights and freedoms, which are by far the most important rights and freedoms in the entire document, Canadians already possessed as subjects of Her Majesty under Common Law before 1982. The reason I dislike the Charter is because the Charter, rather than making these rights and freedoms more secure, as the Liberals who drafted it want you to believe, made them less secure. It includes two extremely broad loopholes.

The clause “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” found in Section 1 is the first of these. Who says what limits are “reasonable” and who decides whether they are “demonstrably justified in a free and democratic society?” The government that seeks to place limits on these rights and freedoms cannot be trusted to make this decision itself.

The second loophole is Section 33, the Exception Section with its notorious “notwithstanding clause”. This section allows the Dominion and provincial governments to pass Acts which will operate “notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter”, i.e., the sections about our fundamental freedoms and basic legal rights. Although such Acts are required to sunset in five years (subsection 3) they can be renewed (subsection 4). This second loophole is the reason former Prime Minister Brian Mulroney said, and he was right to say it, that the “Charter is not worth the paper it’s written on.”

This is not the only problem with the Charter.

Section 7 reads “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”, substituting “security of the person” for “property” which is the third of the basic rights under Common Law, in which the security of person and property is the concise way of stating all three basic rights. Property is nowhere mentioned in the Charter. This has long been criticized as one of the chief failings of this document and has been thought to reflect the Marxist inclinations of those who have led the Liberal Party, arguably since Lester Pearson became leader in 1958, but especially since Pierre Trudeau took over in 1968.

Subsection 2 of Section 4 allows a Dominion or provincial government with a large enough backing in the House of Commons or the provincial legislature – a supermajority of two-thirds – to suspend elections indefinitely in a time of “real or apprehended, war, invasion or insurrection.” Note the words “or apprehended.” The threat of war, invasion or insurrection does not have to be real. Pray that neither the Liberals nor any other party, ever obtain enough seats in Parliament to put this subsection into effect.

Subsection 2 of Section 15 nullifies what subsection 1 says about how every individual is “equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

I am not particularly keen on the wording of subsection 1 either. Saying that everyone has a right to “equal protection and equal benefit of the law without discrimination” can be interpreted in two ways. It can be interpreted as binding the State, preventing it from practicing said discrimination in its administration of the law and justice. I would not have a problem with that interpretation. It can also be interpreted as empowering the State to interfere in our everyday interactions to make sure we aren’t discriminating against each other. I have a huge problem with that – it is a form of totalitarian thought control.

Consider the Canadian Human Rights Act which was passed five years prior to the Charter. Although the expression “human rights” is thought by most people to mean rights which all human beings possess by virtue of their humanity and which only bad governments violate, and the phrase “human rights violation” is ordinarily understood to refer to governments incarcerating people for indefinite periods without a trial, torturing them, murdering them, and the like, this Act places limits on individuals not the State, which it empowers to police the thoughts and motivations of Canadians in their private interactions with each other.

The second subsection of Section 15 states that the first subsection “does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” In other words, the State is allowed to practice discrimination on the basis of race, rational or ethnic origin, colour, religion, etc., if that discrimination is the type sometimes called reverse discrimination, that is to say, discrimination against white people, especially those of British and French stock, Christians, males, etc.

Section 15 as a whole, then, appears to authorize the State to interfere in our private affairs to prevent us from discriminating against each other, while allowing the State to practice a form of discrimination itself.

Other flaws in the Charter itself could be pointed out but those that I have mentioned here are by far the worst. Worse, in my view, than any actual flaw in the Charter, however, is the attitude towards the Charter and the set of false notions about it that the Liberal Party has encouraged us to hold ever since 1982. There are many, for example, who refer to the Charter as if it were our constitution and claim that Pierre Trudeau gave us our constitution. This is not a claim the Charter makes for itself and it is no such thing. The Charter has been a part of our constitution since 1982, but it is not the constitution itself. Indeed, even the British North America Act of 1867, which was renamed the Constitution Act, 1867 during the repatriation process which gave us the Charter but remains in effect, is not the whole of our constitution. Most of our constitution is in fact, unwritten, or, to put it another way, written in prescription and tradition rather than paper and ink. As our greatest constitution expert, the late Eugene Forsey used to say to those who made the absurd claim that Pierre Trudeau had given us our constitution, we still have the constitution we had in 1867, albeit with a new name, and bells and whistles added.

Even more common is the strange notion that the Charter itself gave us our rights and freedoms. Admirers of the Charter tend to view it this way. Some critics, such as William Gairdner (The Trouble With Canada, 1990) and Kenneth McDonald (The Monstrous Trick, 1998, Alexis in Charterland, 2004) have argued that the Charter is an example of continental-style charter law, like the Napoleonic Code, intended to replace our Common Law system of rights and freedoms. The reality is more nuanced than that. Before explaining the nuance and what really happened, we need to understand the difference between the two systems and why this would indeed be a “monstrous trick” if it were in fact true.

Under continental-style charter law, everything is imposed from the top down, from the law itself, to the rights and freedoms that exist under it. Therefore, under this kind of law, you only have the specific rights and freedoms that are spelled out on paper in black and white. The question, under this system of law, is whether or not I have permission to do something.

Under Common Law, the law is not imposed from the top down, except in the sense of the underlying natural law being laid down by God, and even then this raises the much-debated theological question of whether God’s law and justice are expressions of His character or of His will. Don’t worry. I will not attempt to answer that question here as it is quite extraneous to this discussion. The Common Law is not imposed by the State. Although the Sovereign authority, the Queen-in-Parliament, has the power to add to, subtract from, and otherwise alter the Law, the Law is not the creation of the Sovereign authority. The law arises out of natural law and justice, through a process of discovery in the courts, where disputes are brought to be arbitrated on the basis of fairly hearing all the evidence on both sides. Rights and freedoms, under Common Law, are not limited to those that are spelled out in black and white. The question, under this system of law, is whether or not I am prohibited to do something. If not, I am free to do it.

The Charter of Freedoms does not actually replace Common Law with continental-style charter law. It merely creates the impression of having done so. The Charter does not identify itself as the source of our rights and freedoms, nor does it say that we have only those rights and freedoms it spells out. Indeed, it states the very opposite of this. Remember that the addition of the Charter was part of a constitutional repatriation process that required adopting an amendment formula and which required the participation of the provincial governments. Nine out of ten of the provinces are fully Common Law, and it is the exception, which under the provisions of the Quebec Act of 1774 has a hybrid of Common Law criminal law and French civil law, which dissented from the final product. The Liberals would never have been able to get away with substituting continental law for Common Law in this context in 1982. They, quite in keeping with their modus operandi of never telling the truth when a lie will suffice, settled for creating the impression that they had done so. Their totalitarian ends would be met, as long as Canadians started to think in terms of “am I permitted” rather than “is it prohibited.”

This is why the most important section in the Charter of Rights and Freedoms is Section 26. Here it is in full:

The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

This is the Charter’s acknowledgement, tucked away in the miscellaneous category towards the end rather than being placed in the very first section as it ought to have been, that the Charter did not take us out from under Common Law and cause all of our Common Law rights and freedoms to disappear.

To illustrate what this means in application to a current hot topic, the Supreme Court of Canada was entirely in the wrong when it said as part of its ruling in R v Hasselwander in 1993, that Canadians have no constitutional right to own guns. The passing of the Charter, by its own admission in Section 26, did not cancel our right, as subjects of Her Majesty, to have arms for our defence, such as are allowed by law. This is a Common Law right, the fifth right that Sir William Blackstone in the first volume of his Commentary on the Laws of England (1765) identified as a necessary auxiliary to the basic and absolute rights of life, liberty, and property, and which had been put into statute in the Bill of Rights of 1689. This does not mean that the Supreme Court of Canada was necessarily wrong in its ruling on this case which involved the confiscation of a Mini-Uzi sub-machine gun. It does mean, however, that it erred in saying that Canadians had no constitutional gun rights. This was in response to the defence’s own mistake of trying to argue based upon American law, but what they should have said was that Canadians’ Common Law right to own guns is not absolute, but is subject to the qualification “as are allowed by law.”

The significance of Section Twenty-Six is much larger than this however. It means that we should stop listening to all the lies of the Liberals and their supporters in the schools and media, and insist upon all of our traditional rights and freedoms as Her Majesty’s free subjects.
Posted by Gerry T. Neal at 7:41 AM Labels: Brian Mulroney, Charter of Rights and Freedoms, Common Law, Eugene Forsey, gun control, Kenneth McDonald, Liberal Party, Pierre Trudeau, Sir William Blackstone, William D. Gairdner

The Disgraceful Payoff to Killer Khadr & Trudeau Invokes the Phoney Charter

The Disgraceful Payoff to Killer Khadr & Trudeau Invokes the Phoney Charter

Oh please Mr Trudeau, just do it, don’t insult us with your rationalizations about how the Charter protects us all “EVEN WHEN IT’S UNCOMFORTABLE”.  That wonderful charter you speak about didn’t protect Ernst Zundel back in the days when a powerful lobby (more powerful than our charter) wanted his head or Brad Love jailed on many occasions for writing letters to our privileged politicians or James Sears who puts out a satirical newspaper, loved by many but hated by the powerful few who can lobby the Government to have his postal rights taken away.  The charter didn’t work for them, nor has it helped the many many, many more Canadians who who have lost jobs and been pauperized for simply disagreeing with the party line.  Your smiley face may impress many but hypocrisy is an ugly thing. — Lynda Mortl

On Khadr, Trudeau says Charter protects all Canadians ‘even when it is uncomfortable’

Former Guantanamo Bay detainee received $10.5M this week, sources tell CBC News

Prime Minister Justin Trudeau says the Charter of Rights and Freedoms protects all Canadians “even when it is uncomfortable,” responding to a question about his government’s apology and controversial payout to former Guantanamo Bay prisoner Omar Khadr.

“The Charter of Rights and Freedoms protects all Canadians, every one of us, even when it is uncomfortable. This is not about the details or merits of the Khadr case. When the government violates any Canadian’s Charter rights we all end up paying for it,” he told reporters in Hamburg, where he’s wrapping up the G20 summit.

Khadr — who has been branded a terrorist by some and a child soldier subjected to torture by others — received a $10.5-million cheque Wednesday, sources told CBC News

Trudeau has been travelling all week with stops in Ireland and Scotland, before flying to Germany for the global leaders’ summit. Meanwhile, the Khadr payout has dominated headlines back home.

Khadr Payout Interview 20170707Former Guantanamo Bay prisoner Omar Khadr, 30, is seen in Mississauga, Ont., on Thursday, July 6, 2017. The federal government has paid Khadr $10.5 million and apologized to him for violating his rights during his long ordeal after capture by American forces in Afghanistan in July 2002. (Colin Perkel/Canadian Press)

News of the settlement first leaked late Monday night, but it took until Friday for the government to officially confirm that a settlement had been reached — and Ottawa refused to disclose the amount.

“It is not about previous behaviour on the battlefield in Afghanistan; it is about the acts and other decisions the Canadian government took against Mr. Khadr after he was captured and detained,” Public Safety Minister Ralph Goodale said Friday. “Those facts are not in dispute and there is no doubt about how the Supreme Court views them. The government of Canada offended the most basic standards.”

Conservative Leader Andrew Scheer said it was “disgusting” for the government to concoct a “secret deal” and hand over millions to a convicted terrorist.

“This payout is a slap in the face to men and women in uniform who face incredible danger every day to keep us safe,” he said Friday.

Scheer said he believes the Harper government’s decision to repatriate Khadr in 2012 was a sufficient response to the Supreme Court’s ruling that Khadr’s rights were violated.

‘Restores a little bit my reputation’

In an interview with CBC News’ Rosemary Barton, the Canadian-born Khadr, 30, said he hopes the settlement will help restore his reputation.

“I think it restores a little bit my reputation here in Canada, and I think that’s the biggest thing for me,” he said.

Khadr was 15 when he was captured by U.S. troops following the confrontation at a suspected al-Qaeda compound in Afghanistan in 2002.

Suspected of throwing the grenade that killed U.S. Sgt. Christopher Speer, he was taken to Guantanamo and ultimately charged with war crimes by a military commission.

In 2010, he pleaded guilty to charges that included murder and was sentenced to eight years plus the time he had already spent in custody. He returned to Canada two years later to serve the remainder of his sentence and was released in May 2015 pending an appeal of his guilty plea, which he said was made under duress.

Terry Tremaine Exposes Junk Science and Lysenkoism

Terry Tremaine Exposes Junk Science and Lysenkoism
VANCOUVER. September 5, 2013. Former political prisoner Terry Tremaine offered an enthusiastic audience a glimpse of his work as a mathematician and scientist. Before he was victimized by Richard Warman for his political views, Mr. Tremaine was a well-respected university lecturer in Saskatoon. His talk was part of a four city Western Canadian speaking tour which takes him to Vancouver, Victoria, Edmonton and Calgary,
Mr. Tremaine exposed the trend of Lysenkoism or ideology-motivated junk science. “Lysenkoism is masking ideology as science,” he explained,  Trofim Lysenko was a fanatic pseudo-scientist in charge of Stalin’s agricultural programmes. He was a radical proponent of nurture or environment, as opposed to nature or genetics, in raising crops and animals. His lunacy led to repeated famines and shortages.Under the Czar, with little mechanization, Russia fed itself and had considerable excess for export. Under communism, the Soviet Union never once fed itself. “Lysenkoism as a failed ideology of agricultural science was not abandoned by the Soviets until the 1960s after repeated wheat crop failures,” Mr. Tremaine said.Photo
Trofim Lysenko
In more recent times, he explained we’ve had the hysteria over “global warming.|” Contrary to what the global warming advocates insist, “the science is NOT settled,” We know the earth’s climate has been changing for a million years, getting warmer and then colder. The assertion that the current slight increase in temperatures is due to carbons emitted by automobiles and the oil industry is laughable, he said. The largest source of carbon dioxide emissions is the sea. There were period of rising temperatures in the early Middle Ages when carbon emissions caused by humans were negligible. Another likely cause of slight temperature changes is change in the heat of the sun.
The major impetus for the global warming campaign is economic and political, not scientific. Al Gore and his associates, for instance, imagined a market of arbitrary “carbon credits”. They hoped to run an exchange for such credits and pocket huge commissions. Low energy using Third World countries would be given carbon credits. High energy using Western nations like Canada would have to buy the “credits” as punishment for producing carbon emissions. The regime to combat the non-problem of global warming would also fulfill the leftist goal of a massive wealth transfer from the Developed World to the Third World, he explained.
“Human inequality is the subject of my talk along with the intrusion of political correctness into science,” he said. “Political correctness is simply another word for Marxism. When you strip away the mumbo jumbo of ‘dialectical materialism,’ it’s all about radical equality.”

Terry Tremaine 
Unlike pure ideology, “science is about formulating testable hypotheses,” Mr. Tremaine explained. “The way good science works is to try to offer methods to show its hypothesis is wrong, while bad science tries to insulate itself from  refutation.”
“Charles Darwin,” he pointed out, “did not set out to develop the Theory of Evolution. Man has always sought to know his place in the universe and every culture has a creation myth.”
The Industrial Revolution caused considerable cutting into rock to build railways and canals and to dig mines. “This work revealed stratified rock levels which showed different fossil creatures tied to different historical ages.”
Darwin was trained in Divinity. “However, like many rural vicars, he loved to collect bugs and butterflies and birds nests. These amateur scientists use their findings to remind their congregations of the glory of God’s creation.”
When Darwin got he chance to accompany the Captain of the Beagle as his travelling companion on a five-year voyage around the world, he jumped at  the opportunity. He brought back samples from his explorations. For instance, he found the Galapagos Islands a living laboratory and he could trace the differentiation of finches from one island to another, as they adapted to radically different environments.
He concluded that there had been modification by natural selection. “However, he was reluctant to publish his findings for 20 years. What do you do when you fear your conclusions may lead to social disruption and the possible breakdown of society? His wife was a dedicated Christian. Darwin identified with the rural aristocracy and feared his findings might lead to the sort of anarchy of the French Revolution.”
In Darwin’s time, “the problem was the evolution of man. People could accept animal evolution, but many had trouble accepting that man is part of the animal kingdom lions or eagles..”
Mr. Tremaine recalled the “member” or judge at the Canadian Human Rights Tribunal ruling on the Richard Warman complaint about his Internet postings in 2007: “He said, in his decision, ‘Mr. Tremaine’s writings are not legitimate political discourse because they do not promote equality.’ It makes no sense that just because the government wants to promote equality that I must too. What does equality even mean? We are genetically different and look different. Some are stronger, faster, smarter.
“Now,” he continued, “some will respond that in the eyes of God we are all equal. But that is not a scientific comment; it is an article of faith,”
“So, is equality a false concept?’ he asked. “Scientific claims must be testable. The Human Genome Project seeks to map out all human variations. It has been determined that variations among all human populations constitute just one and a half per cent of all DNA. So, the ideologues will argue, we are all essentially the same or equal. However, the seemingly small differences are huge. We differ from chimpanzees by only one and a half per cent of our DNA. Thus, any human being could be genetically one third of the way toward being a chimp!”
“Genetically,” he added, “we share 50 per cent of the DNA of a banana. “
“We’re being sold a false bill of goods about human equality. If we really are all equal, why are there campaign throughout the West to level things. Ultimately, the attempts to impose equality will discourager excellence,” he warned, “with dangerous results for our civilization. You can ignore the facts, but you cannot ignore the consequences of ignoring the fact.”
“Most people have forgotten that the subtitle of Charles Darwin’s Origin of Species was The Preservation of Favoured Races in the Struggle for Life. The world is a constant struggle among the races,” he added.
According to Canada’s weird Charter of Rights and Freedoms, which he called “a muddle of stupidity, we have equality  of rights before the law under Sec.  15.1 but, then, under Sec. 15.2, there are special rights for special minorities.”
Tom Paine, Mr. Tremaine pointed out, warned not to trust charters of so-called rights, as they take real rights away. “We have rights by our very nature as humans. These are unalienable rights,” he added. and concluded by reminding of a warning by the late Doug Christie; “Once the State can define your rights, it can also take them away.” This has happened in spades in Canada under the deceptive Charter.